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Probate
>>> Probate Information
PROBATE
. POWERS OF ATTORNEY . COURT
OF PROTECTION . TRUSTS
. WILLS TAX
PROBATE
Few
experiences are more traumatic than losing a close
friend or relative. The burden can feel even greater
if you are the one who has to sort out the deceased's
affairs.
It
will be necessary to establish whether the deceased
left a Will. Ideally someone in the family will
know in advance where a Will is kept. If there
is a valid Will the Executors named in it may
need to apply for a Grant of Probate. If there
is no Will the estate should be administered in
accordance with the Laws of Intestacy.
The
length of time required to obtain a grant of probate
will vary according to the circumstances of the
case, but please see the factsheet referred to
below for further information on this point.
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'Administering
an Estate' factsheet
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POWERS
OF ATTORNEY
If
through accident, or illness, or simply because
of the onset of old age you are unable to deal
properly with your affairs, it is a relief to
know that someone you trust has the legal authority
to act for you. Such is the effect of an Enduring
Power of Attorney.
Powers
of Attorney are not something exclusively for
older people but can be a useful means of authorising
someone to act on your behalf during, for example,
a period when you are abroad, or in hospital.
If not needed straight away the Power of Attorney
can be stored until such time as it is required,
when the person appointed can step in and act.
Without a Power of Attorney should a person become
incapable of managing their affairs, an application
to the Court of Protection will be necessary.
This is both costly and complex.
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'Power
of Attorney' factsheet
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to the top
COURT
OF PROTECTION
As
mentioned above the Court of Protection is involved
where somebody becomes mentally incapable of dealing
with their financial affairs and they have not
either written a Power of Attorney or it is invalid.
They are called the Patient.
The Application can be made by anybody, family
or otherwise who therefore may not be the person
who is the Patient's first choice. They will have
to obtain a Medical Certificate and complete documents,
not only listing all the assets, liabilities and
information regarding the person whose affairs
they are going to deal with, but also confirm
to the Court that they are a fit and proper person
to deal with these affairs. It is a very expensive
and time consuming procedure. It is also a time
consuming job once the Order has been made. Once
appointed the person is called the Receiver.
Anything that the Receiver does, other than deal
with income, is regulated by the Court and a set
of Accounts has to be submitted to the Court each
year. As you can see this is much more restrictive
than a Power of Attorney although some people
do prefer the level of control that the Court
will have over their affairs.
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'Court
of Protection' factsheet
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TRUSTS
There
are several different types of Trust designed
to fulfill a variety of needs.
Many
Trusts are created for specific purposes, for
example, people may wish to set up a Trust fund
during their lifetime, for the benefit of their
children or their grandchildren called an Accumulation
and Maintenance Trust. Trust funds are often set
up initially with modest amounts going into the
Trust and further contributions being added later
on, or at regular intervals. Setting up that kind
of Trust can often have tax advantages for the
person creating it.
The
majority of Trusts arise under the terms of Wills.
For example, a Testator may wish to leave part
of his or her estate to children at a specified
age (usually 18 years or 21 years) but where the
children are below that age when the Testator
dies. Accordingly, the Executors of the estate
who become the Trustees will need to invest those
funds for the benefit of the children concerned
until they attain the specified age at which time
they will receive the capital together with accumulated
interest.
The
position of a Trustee carries certain legal responsibilities
with it, and these need to be understood by the
Trustees so that they can run the Trust efficiently
and avoid any subsequent difficulties with disappointed
beneficiaries.
All
Trustees should consult a Solicitor specialising
in Trust work if only to make sure that they are
fully aware of all their responsibilities, and
to make sure also that the Trust Funds are being
properly administered and invested to produce
the correct balance of capital growth and income.
Solicitors specialising in Trust work will also
deal with any Trustees' annual Income Tax Return
(an irksome task for many Trustees!) and arrange
for expert advice to be obtained on investment
strategy, whenever necessary.
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'Trusts'
factsheet
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WILLS
Approximately
seven out of ten people who die leave no Will.
If you die without leaving Will your property
will be divided amongst members of your family
in accordance with inflexible rules of law that
may not reflect your wishes. Making a Will enables
you to choose precisely how your possessions and
property are to be dealt with in the event of
your death.
You
can appoint Executors of your choice to deal with
your estate. If you have young children you may
wish to appoint guardians for them. You may wish
to leave specific gifts of money or property to
family, someone you live with, friends or to charity.
You may also minimise tax liabilities through
the creation of a trust fund.
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'Wills'
factsheet
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Probate
& Wills Brochure
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Giving
Away Your Home' Factsheet
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